7. Customer Charges and Payment 7.1. The provisions of this clause 7 only apply to Customers and do not apply to Non-Paying Customers. 7.2. You agree to pay all Charges due to Us in respect of making the Service available to You and Your access to and use of the Service (“Customer Charges”) by the prepayment method and in accordance with the terms as set hereof. 7.3. You agree to pre-purchase Transaction credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding number of Transaction credits for that period, 1 SMS message Transaction, for example, costing 1 corresponding unit Charge in euro cent (subject to any variation thereof) and allowing You to send 1 SMS message using the Service. Each Transaction that You conduct using the Service will therefore reduce the value of the Transaction credits available to You by 1 corresponding unit Charge in euro cent (subject to any variation thereof and as agreed with Your account manager). 7.4. Any Transaction credits purchased by You are only valid for the period in respect of which they have been allocated and any additional Transactions in such period over and above Your allocation shall not be possible. 7.5. You shall be solely responsible, by seeking adequate Transaction credit allocation(s) and checking Your remaining available Transaction credit level on Our website at www.pro-sms.eu, for ensuring that You have enough Transaction credits to meet Your requirements from time to time and We shall not be in any way responsible or liable in the event that You have insufficient Transaction credits to meet Your requirements, and / or have exceeded Your Transaction credit allocation(s), for any period. 7.6. For the avoidance of doubt, a Charge will be incurred for every Transaction conducted by You regardless of whether it is successful. 7.7. If You do not pay any Customer Charges in accordance with the applicable payment terms, We reserve the right to, in Our sole discretion, suspend Your access to the Service and / or cease to allow any Transactions to be conducted by You until further payment is received by Us in full and cleared funds from You. 8. Marketing 8.1. Either party may make use of the other party's name and visual identity for publicity and marketing purposes, without prior consent. Should this be unacceptable to either party, the withdrawal of consent must be communicated in writing. Without limitation to the foregoing, no press release and / or any blog entry may be made by either party regarding this Agreement, without the prior consent of the other party. 9. Your Liabilities and Obligations 9.1. You warrant that You will not: 9.1.1. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used to send messages to any end-user for marketing purposes without that end-user's explicit request for or prior consent to receiving them. If you are sending any message for commercial purposes to any of Your end-users , You must give those end-users the right to opt out of receiving any further messages sent by You for commercial purposes (and You shall promptly process any end-user's election to opt out); 9.1.2. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used to convey messages to any end-user, the frequency and number of which is excessive in Our reasonable opinion; 9.1.3. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used for any improper, fraudulent, immoral or unlawful purpose; 9.1.4. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature; 9.1.5. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or 9.1.6. Use the Service and / or the Free Service or permit the Service and / or the Free Service to be used in a manner that may injure or damage any person or property or cause the quality of the Service and / or the Free Service to be impaired. 9.2. You will at all times during the continuation of the Agreement: 9.2.1. Send only messages that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offense in view of the generally prevailing standards of decency and propriety from time to time; 9.2.2. Comply with all reasonable directions and instructions issued by Us from time to time in relation to the Service and / or the Free Service; 9.2.3. Comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and 9.2.4. Not act in any manner likely to bring Us, the Service, the Free Service or any Network Operator into disrepute. 9.3. You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Service and / or the Free Service that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete. 9.4. You will not state or imply any approval by Us of any particular message that You send using the Service and / or the Free Service or refer to Us in any way without Our prior written approval. 9.5. Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service and / or Free Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements. 9.6. We may, at Our sole discretion cease to convey, and You will promptly cease to transmit at Our request, any message. 9.7. You will not acquire any title or other proprietary right to any intellectual property, including (but not limited to) any patents, know-how, registered or unregistered trademarks, design rights or copyright, relating to the Service and / or the Free Service, nor will You cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services we provide you. 9.8. You warrant that You are the sole owner or licensor or all rights in Your End-User Data or You have obtained all necessary rights, licences and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement. 10. PROSMS Liability 10.1. Nothing in the Agreement will in any way exclude or limit either party's liability for death or personal injury caused by its negligence, for fraudulent misrepresentation or concealment or for breach of data protection obligations herein or for any other liability that cannot be excluded or limited at law. 10.2. We will not be in any way liable to You for any liabilities, losses, damages, costs and / or expenses incurred or suffered by You as either a Customer and / or a Non-Paying Customer as a result of (i) Your use of the Service and / or the Free Service; or (ii) Our negligence, or the negligence of Our affiliates, employees, shareholders, agents or service providers. 10.3. We will not be in any way liable for the content of any messages sent or transmitted using the Service, nor will We be in any way liable for any failure to make the Service and / or the Free Service available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control. We provide all services “as is” and “as available”, and We hereby do not warrant, represent or guarantee, whether expressly or by implication, that any Service and / or the Free Service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights. 10.4. Subject to any express provision to the contrary in the Agreement, We will not in any circumstances be liable to You (as either a Customer or a Non-Paying Customer) in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable. 10.5. Each of us acknowledges that neither You (as either a Customer or a Non-Paying Customer) nor We have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Agreement and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law. 10.6. We shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations and rules having equivalent effect. 11. Term and Termination 11.1. Unless otherwise agreed with Your account manager and subject to earlier termination in accordance with these Terms and Conditions, the Agreement is for an initial minimum 12-month period (the “Initial Term”). The Initial Term will start on the Start Date (the day when you start using the Service or the Free Service) and expire on the End Date (the day corresponding the date in the month in which the initial service term expires). On the expiry of the Initial Term the Agreement will continue automatically unless and until either party gives the other 30 days written notice or either You or We otherwise terminate the Agreement in accordance with these Terms and Conditions. 11.2. If at any time You wish to terminate the Agreement, You must either: 11.2.1. Give Us written notice to that effect within the 7-working day period from and including the Start Date, such notice to take effect immediately; or 11.2.2. Give Us no less than 30 days’ written notice, such notice to take effect no sooner than the End Date (subject to any variation thereof). If You wish to terminate the Agreement with effect from any date preceding such End Date and are unable to do so for cause or any other reason under these Terms and Conditions, if you are a Customer under the Agreement then You must pay Us the Customer Charges due for each month (or part thereof) remaining of the minimum 12-month period post-termination, such Customer Charges to be calculated on the basis of the monthly Customer Charges as set out in the Signature Page (as varied if applicable), and any prepayment of Customer Charges that You have made to Us will not be credited or refunded. 11.3. Either party may also terminate this Agreement with immediate effect by notice to the other party if: 11.3.1. The other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading; 11.3.2. The other party commits a material breach of the Agreement and (where such breach is capable of remedy) fails to remedy the breach within 14 days of a written notice from the party not in breach requiring its remedy; or 11.3.3. Any license required for Us to operate the Service and / or the Free Service is revoked, terminated or modified or, in the case of new license requirements being imposed, the applicable license: 18.104.22.168. Is not granted to Us; or22.214.171.124. Is granted to Us but in such a way as to prevent Us from continuing to make the Service and / or the Free Service available or a Network Operator from enabling Us to make the Service and / or the Free Service available.11.4. We may terminate the Agreement immediately on giving You 14 days’ written notice in the event that any relevant legislation of regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Service and / or the Free Service available. 11.5. If you are using the Free Service under this Agreement You acknowledge that We reserve the right to, at Our absolute discretion, stop providing the Free Service to You on either a temporary or a permanent basis for any reason whatsoever without any prior notice 11.6. Termination of the Agreement for any reason does not affect any rights that have accrued to either party under the Agreement up to the date of its termination and those terms and conditions of the Agreement that are by their nature capable of surviving termination will continue in full force and effect following such termination. 11.7. On termination of the Agreement: 11.7.1. You will immediately cease to use the Service and / or the Free Service; and11.7.2. All amounts then owing to Us under or in connection with the Agreement will become immediately due and payable.12. Force Majeure 12.1. Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and / or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion. 13. Assignment 13.1. Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party's prior written consent (not to be unreasonably withheld or delayed), provided that either company shall be entitled without the other party's consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any company that is, or is a subsidiary of, its ultimate holding company (as defined in section 736 of the Companies Act 1985). 14. Miscellaneous 14.1. Any notices to be given under the Agreement will be given in writing to the addressee at its address, its fax number or its email address as set out in the Agreement and will be deemed to have been received within 48 hours of posting first class or within 24 hours of sending if sent by facsimile transmission or email to the correct fax number or email address of the addressee. 14.2. Nothing in the Agreement will be deemed to constitute a partnership or joint venture between the parties or constitute any party the agent of the other party. 14.3. Any failure by either party to enforce any of the terms or conditions of the Agreement at any time will not be a waiver of those terms or conditions or of the right to subsequently enforce those or any other terms and conditions of the Agreement at any time. 14.4. In the event that any of the terms or conditions of the Agreement are held to be invalid or unenforceable, this will not affect the validity or enforceability of all remaining terms and conditions. 14.5. The Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, arrangements, representations and understandings between the parties relating to the subject matter of the Agreement, provided that We may make changes to any terms of the Agreement from time to time (other than any changes to Our charges or fees) where such changes are necessary to take account of a change in law, in which case We will notify You in advance of any such change and You will be entitled to terminate the Agreement within 30 days of receiving notice of the change. 14.6. A party who is not a party to the Agreement has no right to enforce or rely on any term or condition of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise. 14.7. The Agreement is governed by and shall be construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts. 15. SUMMARY TERMS AND CONDITIONS: 15.1. I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder's permission to use this service.
Last update: 03.11.2013